Nicholas Gordon Pilcher v Brandt Tractor Limited [2026] NZERA 273

This determination is about two separate Personal Grievances (PGs): an unjustified disadvantage claim about being removed from work while complaints were "investigated", and an unjustified dismissal claim where the employer dismissed for serious misconduct without providing the underlying complaints (even in redacted form) and without any genuine opportunity to respond. The ERA upheld both grievances and ordered lost remuneration and compensation. The full determination is embedded at the end of this page.

Background

Mr Pilcher started employment on 28 October 2020 with Agrowquip NZ Ltd as a sales representative. When Brandt acquired the business, he continued employment from 30 January 2023 as a territory manager. On 11 August 2023 he accepted a promotion to Sales Manager, responsible for leading team managers and meeting sales targets and growth expectations.

The first complaint and the Performance Improvement Plan (PIP)

On 16 January 2024 Brandt was alerted to concerns from another employee (anonymised as MJP) about alleged harassment and intimidation. Mr Pilcher attended an investigation meeting on 2 February 2024 with Dean Smith (line manager) and Karen Harvey (HR advisor). He denied the allegations and gave written feedback.

Brandt then convened a proposed disciplinary meeting (14 February 2024) and an outcome meeting (15 February 2024). Transcripts were in evidence. Mr Smith's preliminary view included a warning, mediation with MJP, conflict-management training, and a PIP. At the outcome meeting, Brandt decided not to issue a warning, but did place Mr Pilcher on a PIP. Mr Pilcher declined mediation.

The ERA treated the February process as supportive rather than punitive. It found the PIP was a reasonable response aimed at improving leadership and communication, and that Brandt's actions on the PIP issue were those of a fair and reasonable employer. The PIP disadvantage claim failed.

Four further complaints in late March and early April 2024

Brandt then received four additional complaints in quick succession:

• 26 March 2024: a verbal complaint alleging aggressive, derogatory, belittling and demeaning statements (the employee did not want to make a formal complaint due to safety concerns).
• 2 April 2024: a written complaint alleging the employee felt targeted and demoralised.
• 3 April 2024: a manager complaint alleging an unsettling comment about a co-worker's appearance.
• 3 April 2024: another employee complaint alleging poor and unprofessional treatment of other staff.

The complaint themes included passive-aggressive behaviour, mood swings, nervousness working with Mr Pilcher, and allegations of sexualised or inappropriate language about colleagues. Brandt also had information about sexually explicit text messages sent to staff from an unknown number in February and March 2024, which some staff believed were connected to Mr Pilcher. Brandt did not put the text message issue to Mr Pilcher.

17 April 2024: "special leave" that functioned as a suspension

On 17 April 2024 Brandt issued a letter titled "Commencement of Employment Investigation" and said it would appoint an independent investigator. The letter offered special leave on full pay while the matter was investigated. The parties disputed what happened in the office, but the ERA placed weight on the written record and on evidence that Mr Pilcher's phone and laptop were taken and he was removed from working.

The ERA found that, whatever label was used, Brandt's actions amounted to a suspension "in all but name" because the decision to remove his ability to work had already been implemented. The key failures were procedural: little or no opportunity for Mr Pilcher to obtain advice or respond before being removed, no immediate safety risk requiring removal without consultation (Brandt had waited about two weeks after the last complaint), and the public way the removal occurred in an office with glass windows in front of his team.

The unjustified disadvantage claim about 17 April 2024 was upheld.

22 April 2024: dismissal for serious misconduct without a real investigation

Five days later, on 22 April 2024, Mr Smith called Mr Pilcher. Mr Pilcher and his manager met Mr Smith in a carpark and were told Mr Pilcher was dismissed for serious misconduct, effective immediately. The ERA accepted that holding a dismissal conversation in a carpark was not appropriate.

The investigation approach changed

The 17 April letter indicated Brandt intended to use an independent investigator and agreed terms of reference. But between 17 April and 22 April that approach changed. A senior HR executive (Graeme Taylor, based in Canada) said he was the decision-maker and that he reviewed the earlier complaint and spoke with people involved, but there was no documentary trail supporting a genuine investigation process and he did not speak with Mr Pilcher about the allegations.

The ERA found Brandt did not conduct an internal or external investigation and effectively accepted the allegations at face value by speaking only to complainants. The ERA considered the short timeframe in which four complaints arrived was unusual and was a factor that should have been examined in a fair investigation.

Withholding the complaints (confidentiality vs fairness)

Brandt's principal justification for withholding the complaints was that complainants feared retaliation and that disclosure would create a health and safety risk. The ERA accepted that complainant wellbeing is important, but found Brandt still had options: it could have protected identities while providing sufficient information (for example, redactions, summaries, independent investigation, or other safeguards) so Mr Pilcher could properly understand and respond to allegations before any decision was made.

Instead, Mr Pilcher was dismissed knowing only the general nature of allegations. The ERA found he had no meaningful opportunity to respond in an informed way. The transcript of the dismissal conversation began with Brandt telling him the decision was final. The ERA held this fell well short of the procedural fairness requirements in s 103A(3) and the access-to-information obligations in s 4(1A)(c).

The dismissal outcome

The ERA accepted the allegations were serious and could have provided substantive grounds for dismissal if proven after a fair investigation. But the dismissal was held unjustified because Brandt did not sufficiently investigate and did not give Mr Pilcher a fair chance to respond.

Job-hunting evidence and interference

Mr Pilcher provided evidence of job-search steps. He was on benefit support and later obtained new employment starting 28 April 2025 at an approximately equivalent salary. The ERA also recorded that Brandt's vice-president contacted a prospective employer and advised Mr Pilcher was not permitted on Brandt sites, and that this likely contributed to Mr Pilcher not being offered that role. The ERA treated this as unnecessary interference undertaken without full information and to Mr Pilcher's detriment (even if not malicious).

Good faith penalty

The ERA declined to award a penalty. While Brandt failed to conduct a fair disciplinary process, the ERA was not satisfied Brandt intended to mislead or deceive Mr Pilcher. It found Brandt chose to prioritise confidentiality/safety concerns over the access-to-information obligations in s 4(1A)(c), but treated the case as better addressed through remedies for the unjustified dismissal and disadvantage.

Remedies

Lost remuneration

Mr Pilcher sought a much longer lost wages period (including commission), but the ERA moderated the award. It declined to include at-risk commission as lost remuneration because it was not guaranteed and involved too many variables. It also noted that, even with a proper process, dismissal could still have occurred and therefore causation and moderation were important.

The ERA ordered lost remuneration equivalent to four months, calculated at an average of ordinary pay (including employer KiwiSaver contributions, if any). If the parties could not agree quantum, leave was reserved to apply back to the Authority. Annual holidays entitlement was also to be created for that period.

Compensation

The ERA found the dismissal had significant emotional, reputational, and financial impact on Mr Pilcher and his family. The abrupt process, lack of information, and the way he was removed from the office amplified humiliation and distress. The ERA assessed compensation for hurt, humiliation, and injury to feelings at $22,000.

Contribution reduction

The ERA did not reduce remedies based on the later untested complaint allegations. Instead, it relied on the transcript evidence from the February complaint process, Mr Pilcher's rejection of mediation, and his response to the PIP. The ERA found he should take some responsibility for his contribution to the working environment and for not engaging constructively with support and training offered.

A 12% contribution reduction was applied to the compensation remedy only, resulting in compensation of $19,360.

Practical takeaways

• Confidentiality does not eliminate natural justice: employers can protect complainants and still provide enough detail (often via redaction or an independent investigator) for the employee to respond.
• "Special leave" can still be a suspension: if devices are taken and the employee is removed immediately, the ERA may treat it as suspension and require prior consultation unless there is a genuine immediate risk.
• Investigate before deciding: serious allegations still require objective fact-finding and genuine consideration of the employee's response.
• Avoid collateral harm: interfering with an ex-employee's job search (for example, site bans communicated to prospective employers) can be criticised and may affect remedy assessment.
• Contribution can reduce remedies: the ERA may reduce remedies where the employee's own actions materially contributed to the situation, even if the employer's dismissal process was unjustified.

Read the full ERA determination (embedded)

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Source: Employment Relations Authority determination hosted on determinations.era.govt.nz.